There are few surprises made in the basic arguments by both parties. Viacom claims that YouTube knew about infringing content and should have taken it down (and that Google knew about this and then continued with that policy). Google claims that it's clearly protected by the DMCA's safe harbors. There are some interesting things raised in the filings however:

Viacom claims that YouTube employees uploaded infringing content themselves, and discussed this over email -- though, the filings carefully provide only fragments of the emails, which could easily have been taken out of context. And, even on top of that nowhere does Viacom explain how YouTube employees could distinguish which content was actually infringing and which was put up for promotional purposes or what was fair use. This is a major weakness in Viacom's motion.

Viacom's secondary arguments get weaker as you go down the list. It argues that because YouTube uses advertising to make money, that shows the company directly profits from infringement. That argument makes no sense -- because it would effectively wipe out any safe harbors for any commercial operation, which clearly was not the intent of Congress. Based on this argument, any ISP that hosts content from a paying customer loses its safe harbors. That's ridiculous on its face.

Viacom argues that Google could have blocked uploads with fingerprinting technology it had licensed, but fails to note the massive weaknesses in those fingerprinting technologies (which we still see thanks to Google's bad automated takedowns). It tries to bolster this argument by saying that Google refused to use the fingerprinting on Viacom content unless Viacom agreed to license its content to YouTube. Perhaps there's more to it than this, but I think that's also taking Google statements out of context. The way the fingerprinting works is that Google would need copies of the content to be able to recognize them -- and the only way to do that is if Viacom licensed works to them.

Then the arguments get really weak. Viacom says that Google isn't just a secondary infringer, but a direct infringer, due to the terms of service that say you're granting a license to YouTube, and because to work, YouTube converts uploaded video to Flash. This is a weird legal argument that has been rejected before.

The crux of Viacom's argument rests on trying to break the DMCA safe harbors because Google and YouTube execs knew that there was a lot of infringing content on the site. But Viacom's argument breaks down entirely when you realize it doesn't explain how Google could ever make the actual determination of which videos are infringing. Viacom tries to get around this with some legal tap dancing, basically saying that it doesn't matter and Google just should have known what was infringing and what was not. But that makes no sense. Viacom is basically saying Google should have had a magic wand to figure out what's infringing and make it disappear. That's impossible. No law could possibly require Google to do the impossible. The fact that some of the videos Viacom sued over were uploaded by Viacom itself proves this point clearly.

Viacom argues that because YouTube "licensed" its videos to Apple and Verizon Wireless phones, it shows that it's more than just a passive service provider. Again, this seems like a weak overall argument, as what YouTube was doing was licensing access to the videos in a more convenient format, not claiming control over the videos themselves.

Viacom's lawyers also have a bit of fun at the fact that some old emails relevant to the case were deleted, even though it's not that ridiculous that not everyone keeps all their emails. The motion also mocks Google and YouTube execs for developing "serial amnesia" when presented with "evidence." But, again, Viacom was asking people to remember specific sentence fragments (potentially taken out of context) from years-old emails.

The "big surprise" in the Google motion is that Viacom apparently tried to buy YouTube itself. While interesting as a historical nugget, I'm not really sure that really helps the case one way or the other. It doesn't change how Viacom may have viewed YouTube as a platform. The attempted purchase may just have been a way to try to co-opt it into a limited platform, like what happened with Napster.

Google argues that it has gone above and beyond the DMCA's requirements in providing tools to help copyright holders. Viacom's counter argument, of course, is that those changes are more recent.

For every claim made by Viacom that Google/YouTube execs made damning statements, it looks like Viacom's statements were even worse. For example:

During these negotiations [to license content] Viacom deliberately allowed its content to remain on YouTube, in part because it thought that "having the content there was valuable in terms of helping the rating of our shows."

Google effectively makes the case that Viacom knew the benefits of having its clips on YouTube, tried to negotiate with YouTube for a deal, and when Google came into the picture, basically Viacom just saw it as an easy money grab and massively upped its demands before suing. Google argues that the mass takedown and subsequent lawsuit was really just a negotiating ploy by Viacom to get an upper hand in the negotiations to squeeze more money out of Google.

Amusingly, Viacom notes repeatedly in its own filings that YouTube didn't want to take down its videos because traffic to YouTube would suffer -- but Google counters by pointing out that it did take down all of Viacom's 100,000 takedown requests within hours and traffic to the site did not suffer and, despite Viacom's expectations to the contrary, traffic to Viacom's own sites did not soar. In other words, despite Viacom's over-inflated sense of how important Viacom's videos were to YouTube, the actual evidence suggests that Viacom was very, very wrong.

Viacom tries to brush off the fact that it uploaded many videos itself, by saying (in a footnote) that most of those videos were clearly designated as being from Viacom. Google counters by pointing out that (a) this is not true and (b) Viacom repeatedly disguised who uploaded those videos on purpose -- even quoting Paramount's SVP of marketing saying that the clips "should definitely not be associated with the studio -- should appear as if a fan created and posted it." Among the users who uploaded Viacom clips on behalf of Viacom itself?

On top of that, they registered with non Viacom email addresses, and even went to the local Kinkos to avoid uploading from Viacom directly. How Google was supposed to distinguish those clips from those uploaded by random users is not explained anywhere by Viacom, which is a hugely damning point against Viacom's case.

Further damning to Viacom's case -- the fact that Viacom regularly had to backdown on its takedown notices after it was realized that the takedowns were incorrect. This is a point that we've made before and is driven home repeatedly in Google's filing. If Viacom itself can't get it right -- when it holds the copyrights and some of the videos were uploaded by itself -- how the hell is Google supposed to know which videos are legit and which are not?

Even more amusing is the part that details how Viacom had incredibly complex and detailed rules with BayTSP (who monitored YouTube and sent the takedowns) over what should be taken down and what should be left up. Apparently, those rules changed every few days and the folks at BayTSP compared them to Crime and Punishment. Again, if Viacom required such a complex list of rules for its own partner, how could it expect Google to know what to do without knowing any of that information?

Google also points out that many of the clips in question have serious questions over whether or not they could be considered fair use -- and those are questions for a court to determine. It is both unfair and outside the scope of the law to expect a third party like Google to be able to make that kind of decision on the fly.

In the end, it will surprise no one that I find Google's arguments significantly more compelling than Viacom's. The one point on which Viacom is strongest is the emails from the very early days of YouTube, where the founders and some employees admit that they know there's a fair amount of infringement on the site, and they debate what to do about it, before taking a fairly liberal approach -- though, never an approach that removes their safe harbors (Viacom disagrees on that point). In fact, the weaknesses of Viacom's argument are driven home in that nowhere was it able to produce a single bit of evidence of YouTube founders/execs being aware of a specific infringing video. All of the quotes are about general infringement. The lack of a smoking gun email to the contrary really weakens Viacom's case -- and is a glaring absence in the motion.

What this comes down to in the end is a basic interpretation of what the DMCA really says and means with its safe harbor provisions. Viacom's interpretation would effectively gut the entire purpose of the safe harbor provisions, disqualifying pretty much any commercial entity that allows user created content from gaining safe harbor protections. Such a reading makes no sense as it would make the DMCA safe harbors effectively meaningless.

Google's motion, on the other hand, is quite compelling and highlights how even if execs are aware of general infringement across the site, it was impossible for them to distinguish what was authorized and what was not, as well as what was fair use and what was not. To require a third party like Google to make such determinations would effectively gut the ability of pretty much any user-generated content site to exist -- which, again, would clearly go against Congress' intentions.

Still, with these sorts of lawsuits, you really never know how things will play out -- and judges often get blinded by "infringement bad, must punish!" type arguments. Hopefully, in this case, reason prevails.

Update: Eriq Gardner over at The Hollywood Reporter basically came to the opposite conclusion and found Viacom's arguments persuasive. To him the discussions among YouTube founders is damning, though I still think there's a massive difference between saying "yes, there are infringing videos on the site" and "we know which videos are infringing" is a large and important gap -- and Viacom failed to close it.

Re: Re: Mike got a question ....

It still does seem to be negotiation by litigation to increase the monies going to Viacom.

Thinking out side the box for a moment. I thought of a simple way for google to put an end to fair use problems in the future. In the TOS for YouTube add the lines.

"As of xx/yy/2010 google requires a fair use and use description for all commercial videos and audios."

This way DMCA take downs can point to the fair use documents provided and people appealing DMCA take downs can do the same. In the long run this one change would make the commercial entities that do no fair use fail, and the ones that do gain a greater audience.

Safe Harbors

Something about this part

"Viacom's secondary arguments get weaker as you go down the list. It argues that because YouTube uses advertising to make money, that shows the company directly profits from infringement. That argument makes no sense -- because it would effectively wipe out any safe harbors for any commercial operation, which clearly was not the intent of Congress. Based on this argument, any ISP that hosts content from a paying customer loses its safe harbors. That's ridiculous on its face."

I'm too lazy to google for the article, but I remember lawsuits where they won by this argument. Obviously it makes no sense, but in court it might stand.

Re: Safe Harbors

Impossibilities

No law could possibly require Google to do the impossible.

Well, a judge sure can. That's one of their favorite tricks: give someone a choice between doing something that's impossible or what the judge really wants them to do. Then the judge can later say "I didn't make them do that, it was their own choice", when in fact they had no other possible choice.

Re: Loophole

If Viacom argues that converting a video to a different format makes it a transformative work that Google owns instead of the original creator/uploader, wouldn't that make MP3 sharing legal?

That was the argument used by BlueBeat when they claimed they could sell licensed music legally, because they passed it through their magic mp3 machine. The response to that argument was pretty much "lol no".

you cannot license what you do not control. youtube shows that they have enough control to re-license the content, it is clear they are reformating and republishing the material to suit other users. viacom appears to have at least one very good argument here.

Re: Re: Re: Rights and Ownership

YouTube may not have the full rights, but they reserve a few based on the ToS that has to be confirmed by the uploading party. They (YouTube/Google) assume the rights to reproduce your works with your selected permissions since you (as the uploader) are saying , "Yes, this is my creation, I agree to make a deal between you and myself over this content."

If the ToS of YouTube is broken by the uploader, then YouTube proceeds to make right of the situation. (Remove content, ban account, de-audio filter) All these actions place YouTube well and reasonably protected by DMCA. Any Ads shown during the time the content was presumed to be legal should have no bearance on the fact that the guilty party was the user, and not the service.

Liken this to a full McDonald's restaurant during the height of lunchtime, and some patron is choking on their food in the back of the building. The McD servers and workers are not accountable for the choking patron, but if they see it happening, they need to act immediately on it. Likewise, the cashiers are not accountable for all the meals and lunch sold at the same time of the person choking.

I know the analogy is a bit of a stretch, but the general consensus is that YouTube is a service, and that service cannot give individual attention to every single uploaded file without the entire system becoming unusable.

Re: Re: Re:

no but you are claiming control by charging money to access it. it suggests ownership or control by contract or other which is not true. youtube doesnt have rights to much of the content they offer.

Maybe you should actually read their user agreement before spouting off like that. When you post material on YouTube you do indeed give them such control. Now, if you didn't actually have the legal to right to do so then that's your fault.

Re:

"it is clear they are reformating and republishing the material to suit other users. viacom appears to have at least one very good argument here."

What Viacom is arguing for is the end of all user generated content on the internet.

Any site that allows user generated content must also automatically allow infringing content - since there is no way for the host to judge a priori between the two.

The current laws get around that by giving the host immunity until the existence of infringing content is formally brought to their attention - at which point they must remove the content.

Without that limitation all content generated by anyone other than a big corporation becomes impossible.

No Youtube
No Myspace
No Facebook
No Blogs
No personal/small company/Voluntary Organisation/Church/Charity Websites

Essentially No Internet

Unless you are prepared to see such a total wipeout then Vicaom doesn't have any kind of "point" at all.
The reformatting of the material is irrelevant. Anyone with physical access to the material can do that (including the end user)

Persuasive or not?

I consider myself to be one of the few people who is terribly interested in these copyright issues and yet have never really settled on a conclusion. Trust me — I wish I could see see clearly. All I see is a lot of grey.

Going into today, I was inclined to believe that Google/YouTube had the upper hand in litigation. After reading the briefs, I'm now slightly inclined to think Viacom has a stronger argument.

That said, it's important to remember that this is just a motion for summary judgement. Viacom may have presented a nice case (or so I think), but have they met the burden for summary judgment? Has YouTube?

I doubt either party succeeds. I expect that the judge will throw this case to trial.

Re: Persuasive or not?

Viacom's arguments are only persuasive if you can't wade through all the BS. The emails their quoting don't even remotely say half of things Viacom's trying to imply.

About the only things that the emails do confirm is that:

- There is copyrighted material on YouTube.
- 80% COULD be POTENTIALLY infringing.
- Google can't tell which is which until they get takedown notices.
- Google decided to keep potentially infringing material up, until rightsholders tell them otherwise.

All of that is completely legal under US Law. Viacom's trying to state that not taking down "potentially infringing material" makes you subject to criminal liability...which it doesn't.

Prediction on the outcome...

No matter what the judge decides, the case will be appealed.

I suspect the case will go to trial, but the result won't matter much. Google can't afford to set a precedent that would essentially gut the safe harbor provisions, and Viacom will do pretty much anything to make someone else responsible for the problems of its business model.
Expect this case to go as far up the appeals process as the courts will permit.

Re: Prediction on the outcome...

I suspect the case will go to trial, but the result won't matter much. Google can't afford to set a precedent that would essentially gut the safe harbor provisions, and Viacom will do pretty much anything to make someone else responsible for the problems of its business model.

I expect to see Google "pull a Google" and pay off Viacom in a secret deal just before the trial begins.

Re:

Re:

another report that damns google/youtube pretty hard.

That says the same things we discussed here. Nothing new in it at all. The full Viacom filings are available at the top of this page, and they actually don't damn Google that hard when you actually read them.

They catch youtube employees admitting that there's copyrighted material on the site. Well, duh. Pretty much all content is covered by copyright. The question is whether it's authorized.

And, NOWHERE do they point to any smoking gun evidence of YouTube finding out about unauthorized content and then leaving it up.

There are discussions about following the letter of the law, and they do. There is no evidence that they did not follow the letter of the law.

The quote from Steve Chen's email to Jawed is more understandable when read in context. He's not talking about infringing content. He was complaining about Jawed copying videos from competing sites. He wasn't complaining about posting professional content -- but from other video sites that had some viral videos.

Re: Re:

no they were clear that they were building their site on copyright material and they would remove it later. the idea was build fast and sell out which is what they did. that happened on the back of mass copyright violation. that is the perfect smoking gun. they were aware and mad plans to remove the stuff after they profited from it. i know you dont want to read that mr masnick but the quotes are pretty clear.

One word to viacom:

This wont end well ....

On one side you have people trying to undo a million years of humans (in what ever form) sharing information. On the other you have the non lawyers (humans) just doing what they do. Talk, socialize, gossip, and share information.

You're very wrong about fingerprinting

"The way the fingerprinting works is that Google would need copies of the content to be able to recognize them -- and the only way to do that is if Viacom licensed works to them"

This is wrong.

1. Fingerprinting technology (specifically Audible Magic in this case) only needs “reference fingerprints” from the content owner. These are basically tiny hashes that are smaller than this email that can be quickly distributed. You do not need an original copy of the content.
2. Even if you did need an original copy of the content for it to work, there’s a huge difference between licensing content to YouTube for the purpose of a reference file for anti-piracy to the kind of broadcast license Google was demanding.

Re: You're very wrong about fingerprinting

1. Fingerprinting technology (specifically Audible Magic in this case) only needs “reference fingerprints” from the content owner. These are basically tiny hashes that are smaller than this email that can be quickly distributed. You do not need an original copy of the content.

I believe that Google's technology works differently, and does require a license.

2. Even if you did need an original copy of the content for it to work, there’s a huge difference between licensing content to YouTube for the purpose of a reference file for anti-piracy to the kind of broadcast license Google was demanding.

It's not clear that they were demanding the content be freed up on YouTube.

Also, just because the UFC puts free content on Spike TV for promotional purposes, does that mean Spike TV can post all UFC PPVs without permission?

George, that's a bullshit statement and you know it. No one said it was okay for anyone to violate copyrights. The question is whether or not Google should be expected to figure out which ones violate the law when even Viacom can't.

Re: viacom-youtube

I Hope YouTube & Google Win

I'm siding with YouTube. Just a lot of people communicating with each other, via the latest technology. The goverment should have better things to do than get in the way of this massive human interaction. If anything, TV stations are getting free publicity, as people see snipets of the show on YouTube, they end up being more likely to watch those shows on TV. They are suing, even though they're benfitting from it. This is obnoxious of them. I think Viacom should get a life, and find something else to do, leave Google alone.

Note that I don't think specific knowledge of the infringing content is required for the DMCA safe harbors to be disqualified. General knowledge and the fact that YouTube knew that it profited from the content is more than enough for disqualification I think. YouTube still could have tried to find at least some of the questionable videos and took them off. And though I have not seen the evidence, personally, I find the claims that Viacom deliberately obscured the origin of the authorized content ridiculous. Why would Viacom want to do that, especially when Viacom probably know that the authorized content and the pirated content had to be distinguished for example to properly ensure that only the authorized content was put back on after it was mistakenly taken down?

Re:

Debunking time!

"General knowledge and the fact that YouTube knew that it profited from the content is more than enough for disqualification I think."

No. Just knowing that there exists, somewhere, some infringing content on your Millions Of Videos site does not make the entire site liable. How could you distinguish between profit from infringing content and noninfringing content?

"YouTube still could have tried to find at least some of the questionable videos and took them off."

They did. Whenever a rights holder asked them to, which complies quite perfectly with the DMCA.

"And though I have not seen the evidence, personally, I find the claims that Viacom deliberately obscured the origin of the authorized content ridiculous. Why would Viacom want to do that, especially when Viacom probably know that the authorized content and the pirated content had to be distinguished for example to properly ensure that only the authorized content was put back on after it was mistakenly taken down?"

They wanted to do it in order to self-promote without making it obvious they WERE self-promoting. Then the left hand came in without knowing what the right hand was doing, saw a bunch of 'infringing' videos, and pulled them into this lawsuit before they realized THEY were the ones who uploaded them. Which reinforces Google's case that they *cannot determine* what is infringing and what isn't.